James Madison would not be happy with Kansas politics in 2024

Kansas Supreme Court justices signaled they find fault with a 2021 state law that makes it more difficult for groups to hold voter registration drives. The justices' questioned if the law violates protected speech.


State News

February 28, 2024 - 2:14 PM

Kansas capitol building. Photo by KANSAS REFLECTOR/SHERMAN SMITH

Last week justices on the Kansas Supreme Court signaled that they find fault with the 2021 state law that makes it more difficult for groups to hold voter registration drives. 

The controversial law criminalizes “false representation” of an election official. 

In theory, this seems like it would be a good thing as it would prevent voters from being misled. However, in reality, the law was written so poorly that any group or individual registering voters without a giant sign stating “Not An Election Official” could be punished under the law.

The justices’ line of questioning seem to indicate that they believe the “false representation” law might violate protected speech  — which, if accurate, would be in agreement with the arguments brought forth by the law’s challengers, civic engagement groups focused on voter participation like the League of Women Voters and Loud Light.

As arguments are heard by the Kansas Supreme Court, the legislature is simultaneously pushing through changes that would amend the law to make it more narrow, only criminalizing voter registration drives if groups or individuals engaged in conduct “with the intent to cause a person to believe” they are an election official. In short, if they were deliberately engaging in disinformation.

This situation highlights the continuing power struggle between the legislature and the judiciary.

Voting rights is only one example. Another is access to abortion services.

For example, this session alone, the legislature has introduced nine bills that would restrict abortion access, despite the Court’s 2019 decision in Hodes & Nauser v. Schmidt that constitutionally protects access and citizens’ vote to uphold that decision in August 2022.

Branches competing for political power is a feature of our system of separation of powers, not a bug.

James Madison, the brain behind separation of powers, believed that creating competing power centers within the political system would force compromise to happen. Madison meant just this when he famously said “ambition must be made to counteract ambition.”

Historically, compromise was more common in the political system than it is today. In our current era of hyperpartisan polarization, we more often see instances of constitutional hardball.

Constitutional hardball is often defined as actions by political parties to pass laws that violate norms in ways that undermine democracy. Another result of constitutional hardball is declining satisfaction with government institutions and overall lack of trust in government.

The 2023 Kansas Speaks public opinion survey, conducted by the Docking Institute of Public Affairs at Fort Hays State University, gauged satisfaction with the performance of the state’s legislature and supreme court in October 2023.

23% of Kansans answered that they were very or somewhat satisfied with the overall performance of the Kansas Legislature, an 8 point drop from 2022.

22% of Kansans answered the same about the Kansas Supreme Court, a 10 point decline from the previous year.

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